Chapter Seventeen

JurisdictionNew York

CHAPTER seventeen

When Local Law Enforcement Officers Become ICE Deputies: 287(g) Agreements

Kendra Sena

I. INtroduction

The role of state and local law enforcement in carrying out federal immigration law varies from one municipality to another. Traditionally a federal power, immigration enforcement is increasingly dependent upon willing state and local law enforcement agencies to execute federal priorities. While the vast majority of state and local law enforcement agencies have remained neutral—neither accepting nor declining to enforce federal immigration law—some state and local law enforcement agencies have willingly taken up the charge.

Shortly after his inauguration, President Trump issued two executive orders that expressed his intention to prioritize formal agreements between federal immigration enforcement officials and state and local law enforcement. One of those programs is known as 287(g).746 The 287(g) program (named for the section where it appears in the Immigration and Nationality Act) is a formal cooperative agreement that delegates federal authority to local law enforcement agents to carry out specified federal immigration functions. Under the Trump administration, the number of these agreements has increased dramatically.

But questions remain about the 287(g) program and its effect on the local agency. Many jurisdictions that have entered into a 287(g) agreement have done so with the expectation that it will be a financial benefit to the locality. Critics argue that the program erodes trust between law enforcement and the community and ultimately nets few criminals. This chapter will outline the basic contours of the 287(g) program, the financial impact of the program on the locality, and the potential legal liabilities that it creates.

II. Background: What is the 287(g) program?

The 287(g) program was created in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act, an act of Congress signed into law by President Clinton, amending the Immigration and Nationality Act. The law creates a way in which a state or local law enforcement agency may enter into a formal agreement with the Department of Homeland Security (DHS) to execute specified immigration enforcement actions. The program is voluntary; the federal government cannot impose a 287(g) agreement upon a local agency, nor can it coerce a local agency to enter into a 287(g) agreement. The agreement is also cancelable; once a local agency enters into a 287(g) agreement, it may be terminated at any time by either party.

Each 287(g) agreement is memorialized in a standardized Memorandum of Agreement between the local agency and Immigration and Customs Enforcement (ICE), a component of DHS. Historically, there have been three types of Memoranda of Agreement: "task force" models, "jail enforcement" models, and "hybrid" models. The task force and hybrid models were suspended in 2012.747 Under the jail enforcement model, deputized officers of the local agency are authorized to interrogate alleged noncitizens who are being held in the local agency's detention facility, as well as to process them for removal by ICE.

The processing may include the preparation of a Notice to Appear, the charging document that initiates proceedings against an alleged noncitizen in federal immigration court, and other charging documents. Deputized local officers may also issue a detainer request—a document asking the local agency to notify ICE before the person is released from custody and to hold the person for up to 48 hours beyond their release date in order for ICE to take them into custody.748 There are currently 78 jail- enforcement-model agreements in effect in 20 states.749

Notably, the scope of the Memorandum of Agreement only extends to the specified actions of officers while acting in their official capacity at the detention facility. The Memorandum of Agreement does not authorize immigration enforcement outside of the detention facility, and local agencies that engage in immigration enforcement actions outside of their detention facilities—for example, asking about immigration status at a routine traffic stop—are acting outside the scope of the 287(g) Memorandum of Agreement.

III. Financial Implications

A. What Are the Costs Associated With the 287(g) Program?

A number of local agencies have expressed interest in the 287(g) program on the assumption that there is a potential financial gain from becoming deputized. But the Memorandum of Agreement is clear that it covers very few costs. Under the terms of the 287(g) Memorandum of Agreement,750 ICE agrees to provide instructors and training materials to train the local agents who will participate in the program, and (subject to the availability of funds) a computer and fingerprinting and photographing hardware and software used to execute the agreement. The local agency agrees to be responsible for all other costs, which have proven to be significant.

The required training consists of a four-week basic training program and a one-week refresher training program (completed every two years), held at the Federal Law Enforcement Training Center ICE Academy in Charleston, South Carolina.751 The local agency agrees to pay for travel, housing, and per diem for the officers who attend the training, as well as for all salaries and benefits (including overtime) of the officers who attend the training and the officers who will perform the functions of those who will be trained while the latter are away at training. The local agency also agrees to be responsible for any facility requirements, such as cabling, power upgrades, and installation and recurring costs associated with communication lines like the phone and internet required to implement the program. The Memorandum of Agreement even makes clear that the local agency will be responsible for administrative supplies like paper, toner, pens, and pencils. And, the local agency agrees to cover the costs of security equipment such as handcuffs, leg restraints, and flexi cuffs necessary to implement the program.

The costs associated with the 287(g) program have proven insurmountable for some local agencies. Sheriffs in Texas and Wisconsin recently ended their counties' 287(g) programs, stating that they did not have the resources to continue.752 In North Carolina, two jurisdictions participating in the 287(g) program each spent around $5 million in the first year to implement the program.753 Maricopa County, Arizona, had created a $1.3 million deficit after implementing the program for only three months.754 One county in Virginia had to raise property taxes and take money from its rainy-day fund to implement its 287(g) program, which cost $6.4 million in its first year.755

The Memorandum of Agreement is clear that ICE will cover only minimal costs and the financial impact has played out across a number of jurisdictions over time. So why might a state or local agency be persuaded that the program provides a financial benefit?

B. Does Entering Into a 287(G) Agreement Increase the Likelihood That a Local Agency Will Be Awarded Additional Federal Grants?

The 287(g) program represents only one of many formal agreements that operate between federal immigration and state and local law enforcement agencies. ICE routinely contracts with local agencies to detain or transport people in ICE custody by entering into an Inter-Governmental Service Agreement under which ICE compensates the local agency for providing the specified service. The 287(g) Memorandum of Agreement states that a cooperating local agency may enter into a separate...

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